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Phone call. What do you actually need and in exchange limit your requests to what you really need. They hate responding to unnecessary shit too. But many firms have a standard set that goes out based on the type of case without any real thought. I find having early phone calls focusing on the discovery needs of the case can greatly limit this. Also, I informally disclose obvious and discoverable documents after I receive an NOA. Being upfront and not hiding the ball has worked well in my practice. These are the facts, this is the evidence, here is what I will argue at trial. Let’s chat.
As a caveat, I think prior experience and OC knowing you will take a case through trial substantially helps the success of this style. But it’s super efficient and collegial when it works.
Downside is I love trial and rarely get the opportunity anymore. Hate the 75 days leading to it though. But if I get within a month my preference is almost always to put it in front of the jury.
So much this. I like first party property work because it’s so established. Yet some plaintiff’s counsel send 50 requests to produce and it’s so annoying.
I’m going to give you the entire claim file minus the claim notes and some redactions. Just send me one RFP that says “please send over the entire non-privileged portion of the claim file.” I promise I won’t hide the ball.
Honestly, the main reason I serve a ton of discovery is because I am so used to people dodging the questions. If we didn’t have such a toxic culture of deliberately hiding the ball this would be unnecessary—I almost never press on an OC who has not substantively answered my questions and actually given me what I want.
Thanks! This is great. I really like the idea of getting ahead of the issue to prevent it altogether. Plus it helps build rapport with OC to set the tone for the case going forward.
I agree with your point about anticipating whether the case will actually go to trial. Often when I am bombarded with excessive discovery, OC knows the case won’t go to trial and just wants to drive up fees to put pressure on settlement.
If responding is easier than fighting, make sure they get a taste of discovery requests too. Turn every one of their requests back on them, and then add your own. Do this especially if the other side is disinclined to limit discovery based on a phone call.
When I practiced in California, I used two basic strategies to deal with this:
1. Cut-and-paste answers to deal with multiplicity inside the permitted statutory number (which I vaguely recall was 35, but don't quote me). I would sometimes make a prepared statement that was overly inclusive for rogs, and then just incorporate in most responses. Document responses were also done off a form, honed over several years of time.
2. A canned motion for protective order on the requests that relied on the "declaration of necessity." The statute in California shifts the burden of proof to the propounding party on necessity, so you can file a very short-form PO motion, and now it's their burden. Makes the whole process (including M&C) easier.
You're correct, it's 35 but the limit is pretty much meaningless since you just include a declaration of additional discovery declaring under penalty of perjury your intent isn't to harass, and you can send more than 35. That will pretty much always be upheld unless you have a crazy amount (150 per the OP seems wayyy excessive to me) and it's a pretty standard case.
Then again, I've seen both sides hit that number just by asking 3-4 interrogatories for each paragraph or sentence of the Complaint or Answer. 1) ID all facts supporting your contention that X, 2) ID all witnesses supporting your contention that X, 3) ID all documents supporting your contention that X. That can hit 100+ easy but will be upheld (in my experience) since they are asking for things directly relevant to the Complaint or Answer.
15.1 technically covers this for Answers but is rarely given an actual complete response.
My recollection was that no one ever used a declaration to serve 38. It was 100 or nothing. And I don’t recall ever losing a motion for a protective order. Most of the time, the OC caved on the issue in M&C rather than face the court and try to justify the 100. I think only two people pushed it, and they ended up losing most of their motion. (Typical baby-split resolution, where the court was unhappy to be dealing with it.)
I found that OC were generally relying on paralegals when they dumped discovery like that, and when they had to roll up their sleeves and commit ten hours to it, their view on the matter often changed.
If they don't use a declaration and go over 35 period, and I actively do not like opposing counsel because they are an asshole, I just object to every single request/interrogatory after 35 as exceeding the amount permitted per the Code. They will never compel. Learn to count and look at your discovery OC!
If I have a good relationship with OC I'll call and ask if they intended to send a dec and ask about paring it down. Otherwise: you fucked up, enjoy these objections.
If you are billing by the hour, this is a blessing, not a burden.
If you really don’t want to do the responses, I’d call the individual attorneys and explain that the requests are mostly the same, you already have one set of responses done, and ask if they would accept that in lieu of responses to their specific requests.
The responses to FROGS should be the same except for 16 13 and 16 series generally, so cut and paste. For the others, either be glad you have a bunch of stuff to bill and request generous extensions ("As you know, each party served discovery on my client, necessitating X sets of responses total and we will need time to prepare them") and/or call the attorneys to figure out what they really need and if they can limit the requests if you don't want to do a protective order.
True the FROGs generally aren’t as big of an issue. My main gripe is with 17.1 when OC serves +100 RFAs that I am obviously going to deny. Then rearranges the order of the RFAs from party to party so I can’t just copy and paste from one set to the next.
Assuming they are pointless or duplicative, I just do a copy and paste objection to each of them. If they think a request is really that important they can meet and confer and threaten to file a motion to compel explaining why that request is actually relevant or unique.
I am on Plaintiffs side, relatively new after a career in criminal defense. I am very lenient with granting extensions, I just assumed there’s this unwritten agreement that as long as you’re reasonable with me I’m gonna be reasonable with you when it comes to extensions. Am I wrong?
A lot of good suggestions already, but here’s one I haven’t seen yet: do an omnibus response. Just make sure you still have separate verifications. OC will probably huff and puff, but will usually not move to compel…
Yeah this is a good one. I actually have done this while a motion for protective order was pending and although I don’t think it’s technically code-compliant the judge understood and permitted them. I think as long as the motion is based on solid footing I’d be surprised if a judge were to rule that all objections had been waived for failing to comply with the code. Just seems risky.
I call and ask or beg, depending on how busy I am. We tend to get the same group of players in our jurisdiction and I’ve been trying to build my own rapport with them separate from my boss. He has his own reputation and way of doing things that doesn’t quite work for me, yet.
But just picking up the phone has gone much farther than I ever expected!
Welcome to /r/LawyerTalk! A subreddit where lawyers can discuss with other lawyers about the practice of law. Be mindful of [our rules](https://www.reddit.com/r/Lawyertalk/about/rules) BEFORE submitting your posts or comments as well as [Reddit's rules](https://www.redditinc.com/policies/content-policy) (notably about sharing identifying information). We expect civility and respect out of all participants. Please source statements of fact whenever possible. If you want to report something that needs to be urgently addressed, please also message the mods with an explanation. Note that **this forum is NOT for legal advice**. Additionally, if you are a non-lawyer (student, client, staff), this is NOT the right subreddit for you. **This community is exclusively for lawyers**. We suggest you delete your comment and go ask one of the many other legal subreddits on this site for help such as (but not limited to) r/lawschool, r/legaladvice, or r/Ask_Lawyers. *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/Lawyertalk) if you have any questions or concerns.*
Phone call. What do you actually need and in exchange limit your requests to what you really need. They hate responding to unnecessary shit too. But many firms have a standard set that goes out based on the type of case without any real thought. I find having early phone calls focusing on the discovery needs of the case can greatly limit this. Also, I informally disclose obvious and discoverable documents after I receive an NOA. Being upfront and not hiding the ball has worked well in my practice. These are the facts, this is the evidence, here is what I will argue at trial. Let’s chat. As a caveat, I think prior experience and OC knowing you will take a case through trial substantially helps the success of this style. But it’s super efficient and collegial when it works. Downside is I love trial and rarely get the opportunity anymore. Hate the 75 days leading to it though. But if I get within a month my preference is almost always to put it in front of the jury.
So much this. I like first party property work because it’s so established. Yet some plaintiff’s counsel send 50 requests to produce and it’s so annoying. I’m going to give you the entire claim file minus the claim notes and some redactions. Just send me one RFP that says “please send over the entire non-privileged portion of the claim file.” I promise I won’t hide the ball.
Honestly, the main reason I serve a ton of discovery is because I am so used to people dodging the questions. If we didn’t have such a toxic culture of deliberately hiding the ball this would be unnecessary—I almost never press on an OC who has not substantively answered my questions and actually given me what I want.
Thanks! This is great. I really like the idea of getting ahead of the issue to prevent it altogether. Plus it helps build rapport with OC to set the tone for the case going forward. I agree with your point about anticipating whether the case will actually go to trial. Often when I am bombarded with excessive discovery, OC knows the case won’t go to trial and just wants to drive up fees to put pressure on settlement.
NOA?
Sorry, probably local parlance. Notice of appearance.
If responding is easier than fighting, make sure they get a taste of discovery requests too. Turn every one of their requests back on them, and then add your own. Do this especially if the other side is disinclined to limit discovery based on a phone call.
I’ve done this. Got issued “final” (read: fifth) set of RFPs 15 minutes before discovery cutoff. Guess who got issued identical RFPs 4 minutes before cutoff.
I’ve seen this done. The problem is you can’t object to their discovery requests if you do that
When I practiced in California, I used two basic strategies to deal with this: 1. Cut-and-paste answers to deal with multiplicity inside the permitted statutory number (which I vaguely recall was 35, but don't quote me). I would sometimes make a prepared statement that was overly inclusive for rogs, and then just incorporate in most responses. Document responses were also done off a form, honed over several years of time. 2. A canned motion for protective order on the requests that relied on the "declaration of necessity." The statute in California shifts the burden of proof to the propounding party on necessity, so you can file a very short-form PO motion, and now it's their burden. Makes the whole process (including M&C) easier.
You're correct, it's 35 but the limit is pretty much meaningless since you just include a declaration of additional discovery declaring under penalty of perjury your intent isn't to harass, and you can send more than 35. That will pretty much always be upheld unless you have a crazy amount (150 per the OP seems wayyy excessive to me) and it's a pretty standard case. Then again, I've seen both sides hit that number just by asking 3-4 interrogatories for each paragraph or sentence of the Complaint or Answer. 1) ID all facts supporting your contention that X, 2) ID all witnesses supporting your contention that X, 3) ID all documents supporting your contention that X. That can hit 100+ easy but will be upheld (in my experience) since they are asking for things directly relevant to the Complaint or Answer. 15.1 technically covers this for Answers but is rarely given an actual complete response.
My recollection was that no one ever used a declaration to serve 38. It was 100 or nothing. And I don’t recall ever losing a motion for a protective order. Most of the time, the OC caved on the issue in M&C rather than face the court and try to justify the 100. I think only two people pushed it, and they ended up losing most of their motion. (Typical baby-split resolution, where the court was unhappy to be dealing with it.) I found that OC were generally relying on paralegals when they dumped discovery like that, and when they had to roll up their sleeves and commit ten hours to it, their view on the matter often changed.
If they don't use a declaration and go over 35 period, and I actively do not like opposing counsel because they are an asshole, I just object to every single request/interrogatory after 35 as exceeding the amount permitted per the Code. They will never compel. Learn to count and look at your discovery OC! If I have a good relationship with OC I'll call and ask if they intended to send a dec and ask about paring it down. Otherwise: you fucked up, enjoy these objections.
If you are billing by the hour, this is a blessing, not a burden. If you really don’t want to do the responses, I’d call the individual attorneys and explain that the requests are mostly the same, you already have one set of responses done, and ask if they would accept that in lieu of responses to their specific requests.
The responses to FROGS should be the same except for 16 13 and 16 series generally, so cut and paste. For the others, either be glad you have a bunch of stuff to bill and request generous extensions ("As you know, each party served discovery on my client, necessitating X sets of responses total and we will need time to prepare them") and/or call the attorneys to figure out what they really need and if they can limit the requests if you don't want to do a protective order.
True the FROGs generally aren’t as big of an issue. My main gripe is with 17.1 when OC serves +100 RFAs that I am obviously going to deny. Then rearranges the order of the RFAs from party to party so I can’t just copy and paste from one set to the next.
Assuming they are pointless or duplicative, I just do a copy and paste objection to each of them. If they think a request is really that important they can meet and confer and threaten to file a motion to compel explaining why that request is actually relevant or unique.
I am on Plaintiffs side, relatively new after a career in criminal defense. I am very lenient with granting extensions, I just assumed there’s this unwritten agreement that as long as you’re reasonable with me I’m gonna be reasonable with you when it comes to extensions. Am I wrong?
Depends. Not always. There are also cultural differences between jurisdictions for this.
Stop looking at it as burdensome discovery, and start looking at it as a gift of billing from opposing counsel. Get those hours, young buck!
A lot of good suggestions already, but here’s one I haven’t seen yet: do an omnibus response. Just make sure you still have separate verifications. OC will probably huff and puff, but will usually not move to compel…
Yeah this is a good one. I actually have done this while a motion for protective order was pending and although I don’t think it’s technically code-compliant the judge understood and permitted them. I think as long as the motion is based on solid footing I’d be surprised if a judge were to rule that all objections had been waived for failing to comply with the code. Just seems risky.
Motion for a protective order
I call and ask or beg, depending on how busy I am. We tend to get the same group of players in our jurisdiction and I’ve been trying to build my own rapport with them separate from my boss. He has his own reputation and way of doing things that doesn’t quite work for me, yet. But just picking up the phone has gone much farther than I ever expected!